Rightways - Sowing the seeds of Succes

Sunday, 30 August 2015

South-East Asia’s complex big power relations demand careful and considered understanding, where frequent complications and familiar gut reactions do not help.

WHEN countries have difficulty relating to a rising China, part of the problem lies in not understanding where China is heading and not knowing what it will become.

The sheer scale of China’s development and the weight of its trajectory mean that the impact of its rise on the rest of Asia and the world is bound to be considerable and profound.

As a frame of reference, the future of today’s China is often seen in the context of its past: a “Middle Kingdom” entity, the heart of an Asian tributary system, a regional superpower with global pretensions whose once closed-door policy is opening to the world.

Yet none of these references fits because modern China’s pace of change is as rapid as it is vast. Not only is it a post-Deng China, it is now into the fourth- and fifth-generation leadership of post-Dengist society.

A sense of a likely future China may then be deduced through elimination, by discarding what it is unlikely to be.

These include a communist superpower, a nation shaped by a distinct ideology, and one led by a powerful charismatic individual. But what of those things, admittedly few, that it will still be?

One of these is rule by the Chinese Communist Party (CCP), particularly since single party rule continues to be a central bastion of the status quo. Yet even this requires qualification, if not some revision, and is already subject to much speculation.

The CCP has had to undergo some redefinition as circumstances evolve. The state socialism it championed underwent a social(ist) market phase to emerge as state capitalism.

Ideology continues to be diluted as dogma fritters away. Conservatives and reformists both within and outside China agree the trend is irreversible if not also inevitable.

Just about the only thing that a future China is still certain to be is a unitary state. But even this has to be qualified again.

What is now regarded as Greater China – the People’s Republic of China on the mainland, Hong Kong, Macao and Taiwan – are unlikely to be fused into one singularly cohesive whole anytime soon.

Yet they are moving together towards a unitary economy, the basis of the modern nation state. Such a trend is beyond the protestations of democrats and the comprehension of many strategists.

At the same time, provinces are slowly moving towards greater autonomy in economic matters, including in dealings with neighbouring countries. A country as large as China cannot endure too long under strict centralised rule.

And China has endured longer than all others, with the country now into its fifth millennium of continued statehood. These trends and movements take time and may seem imperceptible for other countries, but they are par for the course with China’s enormous timelines.

For decades now, Chinese authorities have also introduced elections at local levels with invited inputs from the Carter Center. Voting has been practised in village and provincial levels, and despite occasional fits and starts the trend is towards a controlled political opening with assured stability.

All of this contributes to the near-incomprehension of today’s China on the part of external observers. A survey of their attitudes, assumptions and responses in any given week attests to this reality.

Questions of whether China (meaning Beijing) can ever govern Taiwan, or even understand Hong Kong, are typical. The real risk of observers not seeing the wood for the trees is ever-present.

A debate of sorts has emerged over China’s likely reaction to a possible win by Taiwan’s Democratic Progressive Party (DPP) in next January’s election. Pessimists who fret over their own cynical pronouncements fail to realise that China is playing for bigger stakes than petty party feuding.

China’s interest in Taipei is Taiwan, not necessarily a Kuomintang (KMT) Taiwan. A lately declining KMT under President Ma Ying-jou has sufficiently energised pragmatists in Beijing to be diplomatic towards the DPP.

Another perennial issue is the presumed rivalry between the US and China. Although competition exists between them, they have more in common than at variance for now and the foreseeable future.

Their shared interests include international security and a single global economy in which both hold the largest stakes. Rivalry in these core areas compromises the interests of both without enlarging opportunities for either.

An understanding of that basic reality is shared between US and Chinese leaders, but apparently not by Japanese ones. The Abe administration is still stuck between old wartime anxieties and proudly snubbing Beijing.

However, China should also not expect anything but Abe’s cancellation of a visit on Sept 3. The occasion, with Western leaders absent, is being presented by some in China as celebrating its victory over Japan.

China says its upcoming September 3rd military parade is part of commemorations for the 70th anniversary of its victory in the war of resistance against Japanese aggression, and is not specifically aimed at any country.http://t.cn/RyzoMBy

Nonetheless, the Abe government remains an activist one in provoking competition with China over military issues. Its White Paper released last month inflates China’s maritime military capabilities and even conflicts with US calculations.

Besides the US, Taiwan and Japan, the other barometer of China’s rise as seen through its foreign relations is Asean.

China regards Asean wariness of its territorial assertiveness as limited and negotiable, since not all member countries have rival claims to offshore territory. But Beijing may seriously be underestimating Asean’s sense of solidarity, given not just Asean’s community-building agenda but also its common resolve to develop community cohesiveness.

The established links between China and Asean’s newer CLMV members (Cambodia, Laos, Myanmar, Vietnam) are both limited and fraying in places. Beijing needs to rebuild trust and good faith within Asean as much as in North-East Asia.

China has thus emphasised multi-level, multi-sectoral joint ventures both bilaterally and collectively. Its proposals for a Maritime Silk Road and a One Belt, One Road link to Europe are backed by the China-Asean Maritime Cooperation Fund, the Asian Infrastructure Investment Bank, the New Development (Brics) Bank and China’s own solvency.

On the ground however, Asean collectively seeks enlarged trade volumes with China. However, China’s currency devaluations and the subsequent jolts to regional currencies compromise these goals.

With Indonesia, China is extending cooperation in fighting drug trafficking as Jakarta favours using the yuan for bilateral trade. With Malaysia, China is building linkages in education and industrial development.

Thailand’s post-coup government is seen as leaning towards China, thanks in part to a US snub. Now Thai-Chinese ties are growing over purchases of stockpiled Thai rice and even the prospect of a Kra Isthmus canal.

China’s relations with Vietnam and more so the Philippines will require more time and work. Ironically, Unctad trade data identifies the Philippine economy as the biggest regional beneficiary of China’s rise.

Beijing’s ties with the other Asean countries may be less complicated but still require attention and constant tending. Its record of fully understanding Asean is not impressive.

Overall, Beijing’s relations with Asean and its member nations are economic, diplomatic and socio-cultural, without political interference in their domestic matters. This contrasts with Washington’s largely military posturing and its political pressures on issues of democracy and human rights.

China’s impact on this region is likely to remain non-political and non-military – differing from US interaction. This asymmetry makes up much of South-East Asia’s strategic status quo.

Whether and how it will endure, and whether it deserves to remain, still have to be seen.

By Bunn Nagara Behind the Headlines

Bunn Nagara is a Senior Fellow at the Institute of Strategic and International Studies (ISIS) Malaysia.

China is preparing to mark the 70th anniversary of Victory in the Chinese People's War of Resistance against Japanese Aggression and the World Anti-Fascist War. The Chinese Academy of Social Sciences is currently holding a press conference in Beijing on the significance of the V-Day anniversary.

Thursday, 27 August 2015

Criminalising non-payment of service charge under the Strata Management Tribunal

A recent conversation with a relative on urban living raised a couple of interesting issues. One led to suggest that many high-rise buildings in Malaysia were fast becoming urban slums, of which I agreed, having noticed that although Malaysians have started living in stratified development properties, they express the devil-may-care attitude and expect “free lunch”. Clearly, there is a huge need for a paradigm shift in responsibilities with regard to community living.

This so-called freedom of not paying of service charges will come to an end with the establishment of the Strata Management Tribunal (SM Tribunal). It states that any parcel owner or tenant who fails to pay service charges, can be brought before the SM Tribunal with the implementation of the Strata Management Act 2013, Strata Management (Maintenance &amp; Management) Regulations 2015 (June 2, 2015) and Strata Management (Strata Management Tribunal) Regulations 2015 (July 1, 2015). It is interesting to note that limitation is not applicable to the SM Tribunal and the maximum that can be claimed is RM250,000 per claim. Any non-compliance of an award (decision) of the SM Tribunal is now a criminal offence.

THE TRIBUNAL

“Any person who fails to comply with an award made by the Tribunal commits an offence and shall, on conviction, be liable to a fine, not exceeding RM250,000 or to imprisonment for a term not exceeding three years, or both, in the case of a continuing offence, to a further fine not exceeding RM5,000 for every day or part thereof during which the offence continues after conviction.” (Section 123)

The Tribunal shall consist of the following members who shall be appointed by the Minister:

(a) a Chairman and a Deputy Chairman to be appointed from among the members of the Judicial and Legal Service; and

(b) not less than 20 other members

to be appointed from among:

(i) the persons who are members of or who have held office in the Judicial and Legal Service; or

(ii) the persons who are admitted as advocates and solicitors under the Legal Profession Act 1976 [Act 166], the Advocates Ordinance of Sabah [Sabah Cap. 2] or the Advocates Ordinance of Sarawak [Sarawak Cap. 110], and who has no less than seven years’ standing, each appointed for a period of three years.

JURISDICTION OF TRIBUNAL

The Tribunal shall have the jurisdiction to hear and determine any claims where the total amount in respect of which an award of the Tribunal is sought, does not exceed RM250,000 or such other amount, as may be prescribed to substitute the total amount.

Claim can be filed in relation to the following:

1. A dispute or complaint concerning an excercise or the performance of, or the failure to exercise or perform, a function, duty, or power conferred or imposed by Strata Management Act 2013 or the by-laws;

2. A dispute cost costs or repairs in respect of a defect in a parcel, building or landed intended for subdivision into parcels, or subdivided building or land, and its common property or limited common property;

3. A claim for the recovery of charges, or contribution to the sinking fund, or any amount which is declared by the provisions of this Act as a debt;

4. A claim for an order to convene a general meeting;

5. A claim for an order to invalidate proceedings of meeting where any provision of the Act has been contravened;

6. A claim for an order to nullify a resolution where voting rights has been denied or where due notice has not been given;

7. A claim for an order to nullify a resolution passed at a general meeting;

8. A claim for an order to revoke amendment of by-laws having regard to the interests of all the parcel owners or proprietors;

9. A claim for an order to vary the rate of interest fixed by the joint management body, management corporation or subsidiary management corporation for late payment of charges, or contribution to the sinking fund;

10. A claim for an order to vary the amount of insurance to be provided;

13. A claim for an order to give consent to effect alterations to any common property or limited common property; or

14. A claim for an order to affirm, vary or revoke the Commissioner of Building’s decision.

The Orders that the SM Tribunal can make are:

1. Pay a sum of money to another party.

2. Order the price or other consideration paid by a party to be refunded to that party.

3. Order the payment of compensation or damages for any loss or damage suffered by a party.

4. Order the rectification, setting aside or variation of a contract or additional by-laws, wholly or in part.

5. Order costs to or against any party to be paid.

6. Order interest to be paid on any sum or monetary award at a rate not exceeding eight per centum per annum.

7. Dismiss a claim which it considers to be frivolous or vesatious.

8. Any other order as it deems just and expedient.

9. Make such ancillary or consequential orders or relief as may be necessary to give effect to any order made by the Tribunal.

EXCLUSION OF JURISDICTION OF COURT

Where a claim is filed with the SM Tribunal and the claim is within the Tribunal’s jurisdiction, the issues in dispute in that claim, whether as shown in the initial claim or as emerging in the course of the hearing, shall not be the subject of proceedings between the same parties in any court unless:

(a) the proceedings before the court were commenced before the claim was filed with the Tribunal; or

(b) the claim before the Tribunal is withdrawn, abandoned or struck out.

This means that a claimant has to decide in advance as to which forum he has to file a case because having filed a case in the SM Tribunal means he cannot file the proceed in the same courts or vice versa.

PERSONS ENTITLED TO FILE A CLAIM

This is a free for all Tribunal with many claimants and they are:

(a) a developer;

(b) a purchaser;

(c) a proprietor, including an

original proprietor;

(d) a joint management body;

(e) a management corporation;

(f) a subsidiary management

corporation;

(g) a managing agent; and

(h) any other interested person, with the leave of the Tribunal. Filing procedure is inexpensive, pay only RM20 and simply fill in the required forms. These forms have not been uploaded yet on the KPKT web site but requests can be made by email.

RIGHT TO APPEAR AT HEARINGS

At the SM Tribunal, no party shall be represented by an advocate and solicitor at a hearing unless, in the opinion of the Tribunal, the matter in question involves complex issues of law and one party will suffer severe financial hardship if he is not represented by an advocate and solicitor. A corporation or unincorporated body of persons may be represented by a full-time paid employee of the corporation or body. The Tribunal may conduct the proceedings in such manner as it considers appropriate, necessary or expedient for the purpose of ascertaining the facts or law in order that it may determine a claim.

FAST DISPOSAL OF CASES

The SM Tribunal shall make its award without delay and, where practicable, within sixty days from the first day of the hearing before the Tribunal commences. In making an order under subsection (3), the Tribunal shall have regard to:

(a) the relevant provisions of this

Act; or

(b) the interest of all parcel owners or proprietors in the use and enjoyment of their parcels or the common property or limited common property. The award given are final and binding on all parties to the proceedings and are be deemed to be an order of a court and be enforced accordingly by any party to the proceedings. However, any person dissatisfied with the decision of the SM Tribunal can, apply to the High Court challenging the award in the proceedings on the ground of serious irregularity affecting the awards which means an irregularity of one or more of the kinds which the court considers has caused substantial injustice to the applicant.

With the establishment of the SM Tribunal there is hope for better maintenance and management culture to spur our quest to become a developed nation and zero nonpayment issues.

Tuesday, 25 August 2015

Tokyo (AFP) - The arrest of MtGox boss Mark Karpeles has begun to shed light on the defunct Bitcoin exchange after hundreds of millions of dollars in virtual currency vanished from its digital vaults last year.

But as details of a lengthy investigation by Japanese police trickle out, at least one crucial question remains unanswered: where is the money?

On Friday authorities issued a fresh arrest warrant for Frenchman Karpeles over claims he stole several million dollars from clients, including about $48,000 allegedly spent on a luxury canopy bed.

Karpeles, 30, who has reportedly denied the allegations, was initially taken into custody earlier this month and has been held without formal charges for three weeks, as allowed under Japanese law.

A fresh warrant resets the clock on how long police can hold him and grill the self-described computer geek over Tokyo-based MtGox's missing Bitcoins.

So far, police have accused Karpeles of manipulating data and stealing sums that amount to just a fraction of the 850,000 coins -- worth around $480 million at the time, or $387 million at current exchange rates -- that disappeared last year.

MtGox, which once said it handled around 80 percent of global Bitcoin transactions, filed for bankruptcy protection soon after the cyber-money went missing, leaving a trail of angry investors calling for answers.

The company initially said there was a bug in the software underpinning Bitcoins that allowed hackers to pilfer them.

Karpeles later claimed he had found some 200,000 of the lost coins in a "cold wallet" -- a storage device, such as a memory stick, that is not connected to other computers.

But the whereabouts of the money and Karpeles' involvement appear far from solved.
"If there were instances of mismanagement or fraud like this carried out by Mark Karpeles, then he should be held accountable," Bitcoin investor Kim Nilsson told AFP.

Mark Karpeles, head of the MtGox Bitcoin exchange, looks out of a police vehicle on his way to the p

(But) if these charges against (him) don't adequately explain where all the Bitcoin ... money went, then there are still unresolved questions, quite possibly additional crimes and criminals, that must be investigated further."

- Real or fake? -

Nilsson also questioned whether MtGox's Bitcoin deposits were even real in the first place.

"Did MtGox at any point actually hold the coins in question, or have there been faked deposit entries merely making it look that way?" he asked
MtGox reportedly kept its own funds and clients' money in the same bank account.

In an interview with Japan's top-selling Yomiuri newspaper, Karpeles' mother said her "genius" son learned computer languages at age three and started making simple programmes of his own two years later.

Back in 2006, Karpeles -- who reportedly lived in an $11,000-a-month penthouse Tokyo apartment -- wrote on his blog that computer crime was "totally contrary to my ethical principles".

But four years later, a Paris court sentenced him in absentia to a year in prison for hacking. He had come to Japan to work for a web development company in 2009 and later got involved with the Bitcoin exchange.
- Tangible object -

Investors have called on the firm's court-appointed administrators to publicise its data so that experts around the world can help analyse what happened at MtGox.

But the case presented a complex challenge to Japanese police, as financial watchdogs around the world struggle to work out how to regulate digital money.

Unlike traditional currencies backed by a government or central bank, Bitcoins are generated by complex chains of interactions among a huge network of computers around the planet.

"The Bitcoin case is really an embezzlement case, but embezzlement has to involve a 'tangible object,'" said Hisashi Sonoda, a criminal law professor at Japan's Konan University.

"Japanese criminal law treats digital currency as 'data,' not what we call 'tangible object' in a legal sense."

Backers say virtual currencies, which started to appear around 2009, allow for an efficient and anonymous way to store and transfer funds online.

But critics argue the lack of legal framework governing the currency, the opaque way it is traded and its volatility make it dangerous.